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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023/037384
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
DATE: 17/11/2025
SIGNATURE
In the matter between:
NEDBANK LIMITED Plaintiff
(Registration No: 1951/000009/06)
And
ALZABAA (PTY) LIMITED Defendant
trading as CALTEX UNIVERSAL MOTORS
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NKOENYANE AJ
Introduction
[1] This is an exception by the defendant to the plaintiff's amended particulars of
claim. The defendant contends that the pleading lacks the necessary
averments to sustain a cause of action. The plaintiff opposes the exception.
The parties will be referred to as in the main action.
[2] The plaintiff's claim is for the rep ayment of R14,628,707.67, alleged to be
duplicate payments made to the defendant between 29 October 2020 and 11
May 2022. The claim is founded on unjustified enrichment, pleaded in the
alternative:
[2.1] Claim A is based on the condictio sine causa (without cause).
[2.2] Claim B , the alternative, is based on the condictio indebiti (payment of a non-
existent debt).
[3] The defendant raises four exceptions, the crux of which is that the plaintiff's
entire case is vitiated by a fundamental and irreconcilable flaw: it relies on a
written merchant agreement to contextualise the payments, while that very
agreement, on the plaintiff's own pleaded version, was never validly
concluded.
Legal Principles on Exceptions
[4] The principles governing exceptions are trite. An exception that a pleading
lacks a cause of action succeeds if, upon every interpretation which the
document can reasonably bear, no cause of action is disclosed. In Telematrix
(Pty) Ltd v Advertising Standa rds Authority1 the court said , "The purpose
of an exception is to protect litigants against claims that are bad in law and to
avoid the leading of unnecessary evidence.
1 SA 2006 (1) SA 461 (SCA) at para 3
[5] An exception that a cause of action is not disclosed by a pleading cannot
succeed unless it is shown that on every interpretation that the pleading can
reasonably bear, no cause of action is disclosed. The test has been
formulated as whether the pleading, on the face of it and as it stands,
discloses a cause of action. Fo r the purpose of this enquiry all the
allegations in the pleading are accepted as true." [Own emphasis]
[6] The court must accept as true all the factual allegations in the pleading. The
question is whether, on those facts, the plaintiff has disclosed a cause of
action. The court in Picbel Groep Voorsorgfonds v Somerville 2 was
reaffirming the well -established principles for deciding an exception that a
pleading discloses no cause of action. The key points made in that section of
the judgment are:
The "Working Rule" for Exceptions: The court cited with approval the
classic formulation from McKelvey v Cowan NO 1980 (4) SA 525 (Z) at 526D -
G, which states:
"The criterion is… whether on all possible readings of the facts no cause
of action is made out. ...It is for the excipient to satisfy the court that the
conclusion of law for which the plaintiff contends cannot be supported upon
every interpretation that can be put upon the facts."
[6.1] Accepting Pleaded Facts as True: The court emphasized that for th e
purpose of this exception, "every fact alleged in the particulars of claim must
be taken as correct and justified." The court is not concerned with the
plaintiff's ability to prove these facts at trial.
[6.2] Pleading a Conclusion of Law is Insufficient : A critical point made by the
court is that a plaintiff must plead the facta probanda (the facts that must be
proved), not just a conclusory legal statement.
2 2013 (5) SA 496 (SCA) at 511–512.]
The judgment states: "A pleader must of course indicate the conclusion of law
that it seeks to d raw from the facts... But that is not the same as permitting a
pleader to merely set out a conclusion of law without alleging the facts that
support that conclusion.” The pleading is to be read as a whole.
The Foundational Defect: The Invalid Merchant Agreement
[7] A preliminary and decisive issue is the status of the written merchant
agreement ("POC1"), which the plaintiff pleads as the foundation for its
payment obligations.
[8] Clause 1.4.18 of POC1 defines the "commencement date" as "the date on
which this agreement was signed by the last of the parties concerned." Clause
4.1 stipulates that the agreement "will come into force on the commencement
date."
[9] The signature page of POC1 reveals only the defendant's signature. The
plaintiff's signature is conspicuously absent. Consequently, on the plaintiff's
own averments and the document it relies upon, the "commencement date"
never occurred, and the agreement never came into force.
[10] It is a well -established principle that where partie s have stipulated that a
contract will only be binding once signed by both, no contract comes into
existence until that condition is met. Goldblatt v Fremantle 1920 AD 123 at
129; At page 129, the court stated the following principle (emphasis added):
[10.1] "It is a general principle of our law that parties may make the formation
of a contract dependent upon the happening of a future event. In such a
case, there is no contract unless and until the event happens. Similarly, the
parties may agree that the contract shall not be binding until reduced to
writing and signed. In such a case there is no contract unless and until it
is signed. The mere fact that the parties intend to reduce their agreement to
writing does not necessarily mean that they intend to postpone the obligation
to a future date. But if they do so intend, then there is no contract until
the writing is signed."
[11] The case of Markram v Scholtz 3 is a clear authority on a specific point of
contract law relevant to the case in p oint. The case states the following
principle regarding multi-partite contracts. In a contract that requires signature
by all parties to become binding, no single party is bound until every party has
signed.
[11.1] The Facts: The case involved a written d eed of suretyship intended to be
signed by three sureties. The crucial question was whether the sureties who
had signed were bound by the contract even though the third surety had not
yet signed.
[11.2] The Judgment: The court held that they were not bound. The parties had,
by the very structure and nature of the agreement, demonstrated their
intention to be bound only as a complete group. The court found that the
obligation was a joint one, and the contract was conceived as a single, unified
agreement between the creditor and all three sureties together.
[11.3] The Key Quote: The court reasoned that the intention was for the contract to
take effect "only when the last one signed" . Therefore, until that happened,
the contract was incomplete and not binding on any of the parties.
[12] The plaintiff’s implicit reliance on a partly oral or tacit agreement is precluded
by the express terms of POC1. Clause 34.2 constitutes an entire agreement
clause, while clause 33.2.1 mandates that any variation to the agreement
must be reduced to writing . The principle established in SA Sentrale Ko -op
3 [2000] 4 All SA 452 (NC)
Graan Maatskappy Bpk v Shifren 4 upholds the enforceability of such
clauses, rendering any suggestion of an oral or tacit amendment legally
untenable.
[13] It follows that a tacit term cannot be introduc ed to contradict the express
written requirement for a signature. The contractual provisions relied upon by
the plaintiff clearly prevent the importation of any unwritten term, and the
Shifren principle confirms that the formalities chosen by the parties f or
amendments are binding. Any attempt to circumvent these express terms
would therefore be inconsistent with the law and cannot succeed.
[14] In Pan American World Airways Inc v SA Fire and Accident Insurance Co
Ltd5, the Appellate Division (now the Supreme Court of Appeal) made a
definitive statement regarding tacit terms. The court held that:
"No term can be imported into a contract which is inconsistent with an
express term thereof."
[15] This principle underscores that tacit or implied terms cannot be used to
contradict or override the express provisions of a contract. Any attempt to
introduce a term inconsistent with the written agreement is impermissible and
will not be recognized by the courts.
[16] The Plaintiff's Problem: The plaintiff (Nedbank) is trying to rely on the terms
of the Merchant Agreement (POC1) to explain its actions, even though it
never signed the document. At most, the plaintiff could contend that a tacit or
oral agreement on the same terms arose through the parties ’ conduct.
However, such an argument is inherently weak, given the absence of any
formal signature and the express contractual provisions requiring written
formalities.
4 1964 (4) SA 760 (A)
5 1965 (3) SA 150 (A)5 at 175
[17] The Court's Rebuttal: The judgment uses the Pan American principle to shut
down t his potential argument. The express terms of POC1 itself (Clauses
1.4.18 and 4.1) state that the agreement only comes into force "on the date
on which this agreement was signed by the last of the parties."
[18] The Legal Conclusion: Therefore, a court cannot imply a tacit term that the
agreement was binding without signature, because such a term would
be directly inconsistent with the express term requiring signature for the
agreement to "come into force." The express term requiring a signature
overrides any attempt to argue for a tacit variation of that requirement.
[19] I therefore find that the plaintiff has failed to plead a validly concluded
merchant agreement. This finding is fundamental to the analysis of the
exceptions that follow.
Analysis of the Exceptions
First Exception: Claim A (Condictio Sine Causa) is Contradictory and
Unfounded
[20] In Claim A, the plaintiff avers that the duplicate payments were made "in error"
and were "neither due nor owing," thus unjustly enriching the defendant sine
causa.
[21] However, in its preceding paragraphs, the plaintiff pleads that it made
payments to the defendant "through its intermediary, EasyPay" and that it
"fulfilled all its obligations to the defendant in terms of the merchant
agreement by making payment through EasyPay."
[22] This creates an insurmountable logical flaw. The condictio sine causa is
aimed at reclaiming a performance for which there never was, or no longer is,
a legal cause. Here, the plaintiff's own pleading identifies the (purported)
merchant agreement as the cause (causa) for the payments. The payment
was thus not made sine causa (without a cause), but rather ob falsam causam
(on account of a mistaken cause). This distinction is material, and by pleading
the contract a s the reason for payment, the plaintiff has negated the very
foundation of a condictio sine causa claim.
[23] The first exception is upheld.
Second Exception: Claim B (Condictio Indebiti) Fails to Plead a Reasonable
Error
[24] In the alternative, Claim B relies on the condictio indebiti. The plaintiff pleads it
made the duplicate payments in the bona fide and reasonable belief that the
defendant had not yet received payment via EasyPay.
[25] For this claim to succeed, the plain tiff must prove not only a bona fide belief
but that the error was both excusable and reasonable. In the case of Buzzard
Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd 6, The
Appellate Division (now the SCA) clarified that for the condictio indebiti to
succeed, the plaintiff must prove more than just a mistaken payment. The key
requirement is that the mistake must be excusable.
[26] The court held that a mistake is not excusable if the person making the
payment was negligent, and that a reasonably careful person in the same
position would not have made the same error.
[27] The Plaintiff's Pleaded Case: Nedbank (the plaintiff) pleads that it made the
duplicate payments in a bona fide and reasonable belief that the mo ney was
due (because it believed the defendant had not been paid via EasyPay).
6 1996 (4) SA 19 (A)
[28] The Defendant's Exception: The defendant argues that this belief was not
reasonable and that the error was therefore not excusable. The defendant's
logic, now backed by the authority of Buzzard Electrical, is as follows:
[28.1] The payment was made based on the assumption that a valid, binding
Merchant Agreement (POC1) existed, which created the obligation to pay.
[28.2] However, the very document the plaintiff relies u pon (POC1) objectively
proves that the plaintiff itself failed to execute the agreement by not
signing it.
[29.3] A sophisticated entity like a bank is held to a high standard of care in its
commercial dealings. For such a party to make a multi -million rand payment
based on a contract that it itself never finalized is a clear failure to take
reasonable care.
[30] Applying the principle from Buzzard Electrical, I conclude (in paragraph that
the plaintiff's error "stems from the Plaintiff's own negligence i n not finalising
the agreement, rendering the error unreasonable as a matter of law." Because
the error was not excusable (i.e., it was negligent), the essential requirement
for the condictio indebiti is missing.
[31] In summary, Buzzard Electrical provides the crucial legal authority
that negligence vitiates a plea of excusable error . This allows the court to
find that, based on the pleaded facts alone, Nedbank's mistake was legally
unreasonable, thereby defeating its alternative Claim B before it even gets to
trial.
[32] The defendant correctly argues that the plaintiff's error cannot be considered
reasonable. The plaintiff, a sophisticated financial institution, made substantial
payments based on the assumption that a valid, binding contract was in place.
Yet, the very document it annexes to its particulars of claim objectively
demonstrates that it failed to execute the agreement, thereby ensuring it
never came into force. To find a belief and subsequent action on a contract
one has oneself faile d to finalise is, in these circumstances, unreasonable as
a matter of law.
[33] The second exception is upheld.
Third Exception: Failure to Plead Impoverishment and Causa
[34] This exception further attacks Claim A. A claim for unjustified enrichment
requires a clear plea of the defendant's enrichment, the plaintiff's
corresponding impoverishment, and the absence of a legal cause for the
enrichment.
[35] Firstly, the plaintiff pleads it made payments "through its intermediary,
EasyPay. " If EasyPay, a separate legal entity, was the source of the funds,
the plaintiff has not pleaded facts demonstrating that it, and not Easy Pay,
suffered the impoverishment . In the absence of such allegations, the causal
link between the transfer of funds and the plaintiff’s own financial detriment
remains unestablished.
[36] Secondly, as held in upholding the first exception, the plaintiff has pleaded a
causa (the agreement) for the payment. The defendant received what it was
intended to receive under th at purported agreement. In these circumstances,
the plaintiff has failed to plead convincingly that the enrichment was without
cause.
[37] The third exception is upheld.
Fourth Exception: Failure to Comply with a Condition Precedent
[38] Clause 29.1 of POC1 requires the plaintiff to give the defendant five days'
written notice to remedy a breach. Clause 33.1 designates the addresses on
the cover page as the chosen domicilia for serving such notices. The
defendant's chosen domicilium is 9[…] V[...] R[...] Avenue, Edenvale.
[39] The plaintiff's letter of demand (POC3) was sent only to "Unit 1 Saxonwold
Apartments, Saxonwold," an address not stipulated in POC1. Service on the
chosen domicilium is a mandatory contractual precondition. The plaintif f's
failure to comply renders the issuance of summons premature. In Brisley v
Drotsky 7. The central holding of the case is that a contractual clause
requiring that any variation or cancellation of the agreement must be in
writing and signed by the partie s (a "non -variation clause") is legally
enforceable.
[39.1] Sanctity of Contract: The court emphasized the importance of upholding the
clear intentions of the parties as expressed in their written contract. If the
parties agreed to a specific formal procedure for changing the contract, the
law should respect that.
[39.2] Enforceability of Non -Variation Clauses: The court explicitly held that a non -
variation clause like the one in the Brisley case and similar to Clause 33.2.1 in
the Nedbank POC1) is valid and binding. Therefore, an oral agreement to
cancel or vary the contract is ineffective if the written contract contains such a
clause.
[39.3] The Shifren Principle Reaffirmed: This decision firmly entrenched the principle
first established in SA Sentrale Ko-op Graan Maatskappy Bpk v Shifren 8
which upheld the validity of "contract -in-contract" clauses, i.e., clauses that
dictate how the contract itself can be changed.
[40] The Supreme Court of Appeal (SCA) overturned previous suggestions that
such clauses were against public policy. The court held that adults of sound
mind should generally be held to the agreements they freely enter into.
7 2002 (4) SA 1 (SCA)
8 1964 (4) SA 760 (A)
[41] The fourth exception is upheld.
Conclusion
[42] The plaintiff's particulars of claim are excipiable on multiple, interrelated
grounds. The core defect is the attempt to find a claim on payments made
under a contract that never existed, creating fatal contradictions in its
pleadings.
[43] In the result, I make the following order:
1. The defendant's exceptions are upheld.
2. The plaintiff's particulars of claim are set aside.
3. The plaintiff is granted 15 (fifteen) days from the date of this order to deliver
amended particulars of claim.
4. The plaintiff is to pay the costs of the exception on scale B.
NKOENYANE AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date of Hearing: 11 August 2025
Date of Judgment: 17 November 2025
Appearances:
Counsel for the Defendant: M Cajee
Attorneys for the Defendant: SLH Incorporated
Counsel for the Plaintiff: L Acker
Attorneys for the Plaintiff: KWA Attorneys